Seniority

Supreme Court: Stating that ‘transfer’ and ‘recruitment by transfer’ are entirely two different concepts, the Court said that no doubt transfer can be from one category to another category or within the class if the rule permits interchangeability of the categories within a class but any other transfer both intra category and inter category are in fact, under law is a selection and appointment by way of a transfer from one category to another or from one class to another class or from one service to another.

Explaining further, the Court said that transfer in relation to service simply means a change of a place of employment within an organization. Such transfer being to a similar post in the same cadre and therefore, obviously such a transfer does not result in the termination of his lien in the parent cadre but recruitment by transfer is a different service concept altogether. Once an employee undergoes a transfer by way of a recruitment to a different cadre or to a different service, the employee loses his lien in the parent cadre/service. In that process, there is an induction to a new cadre and sometimes with a different type of duty. Such induction has distinct consequence on the career of the employee different from what would have been the normal course had he continued in the parent service.

The bench of Kurian Joseph and R. Banumathi, JJ also explained the difference between ‘Seniority’ and ‘eligibility’ and said that as far as promotion or recruitment by transfer to a higher category or different service is concerned if the method of promotion is seniority-cum-merit or seniority per se, there is no question of eligible senior being superseded. Other things being equal, senior automatically gets promoted. But in the case of selection based on merit-cum-seniority, it is a settled principle that seniority has to give way to merit. Only if merit being equal senior will get the promotion. It was held that merely because a person is senior, if the senior is not otherwise eligible for consideration as per the rules for promotion, the senior will have to give way to the eligible juniors. [Palure Bhaskar Rao v. P. Ramaseshaiah, 2017 SCC OnLine SC 388, decided on 12.04.2017]

Supreme Court: Deciding the validity of the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (To the Posts in the Civil Services of the State) Act, 2002 which provides for grant of consequential seniority to the Government servants belonging to Scheduled Castes and the Scheduled Tribes promoted under reservation policy, the bench of A.K. Goel and U.U. Lalit, JJ declared the provisions of the impugned Act to the extent of doing away with the ‘catch up’ rule and providing for consequential seniority under Sections 3 and 4 to persons belonging to SCs and STs on promotion against roster points to be ultra vires Articles 14 and 16 of the Constitution.

In the present case where the Assistant Engineers of SC/ST category recruited in the year 1987 were promoted to the cadre of Assistant Executive Engineers while in general merit,Assistant Engineers recruited in 1976 were considered for promotion to the said cadre, the appellants argued that the SC/ST candidates got promotion early and on account of consequential seniority, percentage of SC/ST candidates was much higher than the permitted percentage and all top positions were likely to be filled up by SC/ST candidates without general merit candidates getting to higher positions. The appellant had also argued that as a consequence of accelerated seniority to the roster point promotee, the roster point promotee would reach the third level by the age of 45 and fourth, fifth and sixth level in next three, two and two years, however, the general merit promotee would reach the third level only at the age of 56 and retire before reaching the fourth level. This would result in reverse discrimination and representation of reserved category would range between 36% to 100%.

The exercise for determining ‘inadequacy of representation’, ‘backwardness’ and ‘overall efficiency’, is a must for exercise of power under Article 16(4A) of the Constitution. Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy. If the State wishes to exercise its discretion under Article 16(4A), it is to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. Even if the State has compelling reasons, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely. The Court said that the plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion.

The Court, however, clarified that the judgment will not affect those who have already retired and will not affect financial benefits already taken. Consequential promotions granted to serving employees, based on consequential seniority benefit, will be treated as ad hoc and liable to be reviewed. Seniority list may be now revised in the light of this judgment within three months. [B.K. Pavitra v. Union of India, 2017 SCC OnLine SC 109, decided on 09.02.2017]

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